Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS: Prior to trial, the appellant filed a motion to suppress evidence including inter alia all evidence seized as the result of the execution of the search warrant at 8513 Cornwall in Austin. The appellant contended that the search warrant affidavit failed to reflect probable cause as required by the Fourth and 14th amendments to the U.S. Constitution and Article I, �9 of the Texas Constitution, as well as certain state statutory provisions. After pretrial hearings, trial court overruled the suppression motion. The appellant entered his guilty pleas on Oct. 10, 2002, and was sentenced on Nov. 4, 2002. Separate judgments of conviction were entered. The contraband which was discovered as a result of the execution of the search warrant was the evidence presented by the prosecution in support of appellant’s guilty pleas to counts II and IV. In overruling the suppression motion, the trial court found that the search warrant affidavit sufficiently reflected probable cause. The trial court found that the information received by the affiant-officer from a confidential informant was stale because the affidavit did not show when the affiant-officer received the information. However, the trial court concluded that this defect was cured by the finding of a plastic bag with cocaine residue in the garbage can at 8513 Cornwall. HOLDING: Reversed and rendered. The appellant contends that the trial court erred in denying a pretrial motion to suppress evidence because the search warrant affidavit failed to establish probable cause. The conclusory tip with no shown basis of knowledge and its temporal difficulties, plus its lack of nexus to the residence, does not contribute to the finding of probable cause. The tip was a mere assertion of a crime. The affiant-officer found in the police files a name matching the one extracted from the tip. The individual is not shown to have a narcotic criminal record. Two addresses are discovered for the named individual. He is placed on the premises of the second address by surveillance and identification by police photograph. The residence is listed in the name of another person. A single incursion into the garbage can at the address reveals a plastic baggie with white powder residue shown by the affiant-officer’s “analysis” to be cocaine. The garbage can at the curb was open to the public, including neighbors, the police and “unwelcome meddlers. Standing alone, the one-time intrusion into a garbage can revealing cocaine residue in one plastic baggie along with an empty tied-off plastic baggie would not justify a finding of probable cause to search 8513 Cornwall. Other than cocaine residue in the garbage can, there is nothing to support the probability that the items to be searched for were on the premises. The court does not have any evidence that anyone had been on the premises and seen contraband, known users of narcotics frequenting the place, people coming or going at all hours, short stops by automobiles or other evidence of similar nature. Although Daniel Serrano was placed on the premises in question on the day the warrant was issued, there would have been no probable cause to arrest him for possession of the cocaine residue in the trash. The tip with no nexus to the residence, the police file examination, appellant’s presence on the premises and the residue of cocaine in the plastic bag in the trash did not constitute probable cause or give the magistrate a substantial basis to so find. If it did, then the constitutional and statutory guarantees that citizens are to be secure in their homes have little meaning. Illinois v. Gates, 462 U.S. 213 (1983) makes clear that the court must ensure that the magistrate had a substantial basis for concluding that probable cause existed. The court cannot so ensure from the four corners of this search warrant affidavit. Even the trial court admonished the affiant-officer about the affidavit presented to the magistrate. The trial court erred in overruling the motion to suppress. OPINION: Onion, J.; Law, C.J., Kidd and Onion, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.